Supreme Court of Connecticut Affirms Judgment Following Jury Verdict

In Farrell v. Johnson & Johnson, the Supreme Court of Connecticut affirmed a defendant’s verdict in favor of HPM&B’s client, a surgeon. Heidi Cilano and Nancy Marini represented the client at trial. David Robertson handled the appeals in the Connecticut intermediate and highest appellate courts.

The plaintiff’s malpractice suit alleged that she had suffered damages when a surgeon had failed to properly inform her of the risks associated with a vaginal mesh product that was to be surgically implanted. Heidi Cilano and Nancy Marini had obtained a defendant’s verdict when a Waterbury, Connecticut jury rejected all of the plaintiff’s claims. Following the defendant’s verdict, the plaintiff appealed to the Connecticut appellate court which issued a decision finding no error and affirming the jury’s verdict. Thereafter, the plaintiff petitioned to the Connecticut Supreme court which granted certification on two issues. The first was an evidentiary issue concerning the preclusion of certain medical journal articles that the plaintiff had claimed were being offered at trial only for proof of notice to the defendant of the medical issues reported in the articles, but not for the truth of their content. The second issue concerned the propriety of a directed verdict that the trial court had granted as to one the plaintiff’s causes of action which had alleged a claim of innocent misrepresentation against the defendant concerning the proposed procedure and its outcome.

After extensive briefing and argument, the Connecticut Supreme Court rendered a decision holding that the trial judge had not erred when he sustained the defendant’s hearsay objection to the medical journal articles. “(T)he defendants contested the authoritativeness of the two articles at issue. As such, the trial court did not abuse its discretion by excluding them for the purpose of establishing that they were so authoritative in the field that (the defendant) should have been on constructive notice of their content. . .” Farrell. It also rejected the plaintiff’s second argument that the trial judge had erred in directing a verdict on the plaintiff’s innocent misrepresentation cause of action. Through her innocent misrepresentation claim, the plaintiff sought to extend the liability of physicians in Connecticut for any “innocent misrepresentations” they were claimed to have made concerning a procedure that the plaintiff was considering undergoing. Such an extension of liability would have had the potential to impose strict liability on physicians for an unfavorable outcome. While innocent misrepresentation had previously been recognized under Connecticut law to compensate for losses occasioned by commercial transactions, the Connecticut Supreme Court found that such liability should not be extended to the provision of medical services.